Wagner v. Office of Personnel Management
| Decision Date | 18 February 1986 |
| Docket Number | No. 85-2389,85-2389 |
| Citation | 783 F.2d 1042 |
| Parties | 121 L.R.R.M. (BNA) 2980 Joseph C. WAGNER, Jr., and Jeffery L. Atchley, Petitioners, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Dan N. Norwood, Byrd, Cobb, Norwood, Lait, Dix & Babaoglu, Memphis, Tenn., argued for petitioners.
Robert A. Reutershan, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director. Elizabeth H. Corey, Office of the Gen. Counsel, Office of Personnel Management, of counsel. Diane R. Liff, Asst. Gen. Counsel for Litigation, Dept. of Transp., of counsel.
Before MARKEY, Chief Judge, FRIEDMAN, Circuit Judge, and MILLER, Senior Circuit Judge.
This petition for review challenges the decision of the Merit Systems Protection Board (Board) affirming the ruling of the Office of Personnel Management (OPM) that former air traffic controllers who had been discharged for striking against the United States were not suitable for employment with the Federal Aviation Administration (Administration). We affirm.
The petitioners are former air traffic controllers who were discharged for participating in the illegal air traffic controllers' strike in August 1981. Shortly after the strike, OPM determined that the discharged strikers would be debarred from any federal employment for three years. On December 9, 1981, the President issued the following directive to the Director of OPM:
The Office of Personnel Management has established the position that the former air traffic controllers who were discharged for participating in a strike against the Government initiated on August 3, 1981 shall be debarred from federal employment for a period of three years. Upon deliberation I have concluded that such individuals, despite their strike participation, should be permitted to apply for federal employment outside the scope of their former employing agency.
Therefore, pursuant to my authority to regulate federal employment, I have determined that the Office of Personnel Management should permit federal agencies to receive applications for employment from these individuals and process them according to established civil service procedures. Your office should perform suitability determinations with respect to all such applicants according to established standards and procedures under 5 CFR, Part 731.
After reviewing reports from the Secretary of Transportation and the Administrator of the Federal Aviation Administration, I have further determined that it would be detrimental to the efficiency of operations at the Federal Aviation Administration and to the safe and effective performance of our national air traffic control system to permit the discharged air traffic controllers to return to employment with that agency. Therefore, these former federal employees should not be deemed suitable for employment with the Federal Aviation Administration.
I direct you to process their applications for reemployment with the federal government accordingly.
17 Weekly Comp. of Pres.Doc. 1364 (Dec. 9, 1981).
On January 6, 1982, the Director of OPM issued a bulletin to the heads of all executive departments and independent agencies which, after quoting the foregoing presidential directive, instructed that agencies considering employment applications from former air traffic controllers should submit the application and additional information to OPM. The Director further stated:
(b) All persons whose employment was terminated on account of the strike by air traffic controllers, which began on or about August 3, 1981, shall be determined not to be suitable for reinstatement or appointment in any position in the Federal Aviation Administration, because it would be detrimental to the efficiency of that agency by interfering with or preventing its effective performance of its duties and responsibilities (5 CFR 731.202(a)(2)).
(c) The Office of Personnel Management shall consider, on a case-by-case basis, applications for Federal employment, other than in the Federal Aviation Administration, from air traffic controllers whose employment was terminated on account of striking, and shall make appropriate determinations of their suitability for the particular employment for which they may apply....
The named petitioners Wagner and Atchley applied to the Administration for appointment as air traffic controllers. The Administration forwarded the applications to OPM, which denied favorable suitability determinations. The effect of the denial was to bar them from obtaining positions with the Administration.
Wagner and Atchley appealed the OPM action to the Board. The presiding official of the Board certified the case as a class action on behalf of all former air traffic controllers who, after their discharge for participation in the illegal strike, were denied favorable suitability determinations by OPM. The class comprised more than 400 former controllers.
The petitioners waived a hearing, and the case was submitted to the presiding official based upon written submissions by the parties. The parties stipulated that "OPM found each of the appellants to be unsuitable based solely on a determination that they had been removed from their positions with the FAA for striking in August 1981" and "based on its interpretation of the President's directive of December 9, 1981."
The presiding official affirmed the "OPM decision indefinitely debarring appellants as unsuitable for FAA employment...." The presiding official held (1) that the bar upon employment by persons who struck against the government that 5 U.S.C. Sec. 7311 (1982) imposes, discussed below, is not limited to three years, and (2) that OPM correctly interpreted the President's October 9, 1981 directive as imposing an indefinite and not just a three-year bar upon employment by the Administration of former air traffic controllers who had struck.
The petitioners did not seek review by the Board of the presiding official's decision, which became the decision of the Board. The petitioners then filed the present petition for review of the Board's decision.
The petitioners challenge the Board's decision on the grounds (which are the issues the parties stipulated the Board was to decide) (A) that OPM incorrectly interpreted the presidential directive as imposing an indefinite ban upon the employment by the Administration of the former controllers, and (B) that if the presidential directive did impose such a ban, it was illegal because it was inconsistent with 5 U.S.C. Sec. 7311, which the petitioners interpret as barring strikers from federal employment for only three years.
A. The presidential directive explicitly imposed an indefinite ban upon the employment of striking controllers by the Administration. After stating in the first paragraph that the President had concluded that "such individuals, despite their strike participation, should be permitted to apply for federal employment outside the scope of their former employing agency," it provided:
I have further determined that it would be detrimental to the efficiency of operations at the Federal Aviation Administration and to the safe and effective performance...
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